Detention and human rights in the UK: maintaining the presumption of liberty

Rigorous reviews by a
genuinely independent panel could be a significant step away from the routine
long-term detention of migrants in Britain, but only a time limit provides a
sure safeguard, says Kate Blagojevic

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The UK has - at points in our history - been proud
to welcome refugees. The present day is, unfortunately, not one of those
periods as we are unequivocally conforming to the global trend of attempting to
control and repel migrants through increasingly draconian measures, such as detention.
The UK now wins the less illustrious prize for detaining
the highest number of asylum seekers, aside from Australia. The government’s determination to look tough on
immigration is sullying the UK’s human rights record.

For people who have experienced detention first hand our
proud history means little. The present and the future of Britain’s immigration
policy weigh heavily on their shoulders, with the threat of being re-detained experienced
as a daily burden. The devastating speed
of the process of dehumanisation
from person to ID
number to government statistic is fresh in their minds. The contrasting
glacial pace of change is infuriating, frustrating, frightening.

On 10 December, UN Human Rights Day, a
parliamentary meeting brought together MPs, NGOs, concerned individuals and
people who have been detained. Each speaker outlined the violations of human
rights that detaining people brings about. Roland Schilling, from UNHCR, the UN
Refugee Agency, discussed the cornerstones of human rights and how detention flies
in the face of these principles: the prohibition against torture and
inhumane treatment, the right not to be arbitrarily detained or imprisoned and the
right to liberty.

Article 3 – the
prohibition of torture

Over the last year, the High Court has four
times found that the detention of vulnerable individuals amounted to cruel
and degrading treatment that breached their human rights under Article 3 of the
European Convention on Human Rights. In one case, Hamish Arnott from Bhatt
Murphy solicitors explained that the High Court described the UK Border Agency
(UKBA) as having shown ‘callous indifference’ towards a man whose mental
illness had led him to stop eating. According
to the centre’s Healthcare Manager, he could die imminently and was unfit for
detention. UKBA were busy preparing a press release in case he died, but failing
to recognise the nature and extent of his illness.

Given the high threshold that exists for the Court to rule
that Article 3 has been violated, these cases may seem shocking, but it comes
as no surprise to anyone who works with people who have been detained. Hamid,
who was in detention for over three years, attended the parliamentary meeting.
He said that when he was first detained he was surprised at the level of self
harm, the visible progression of mental decline of those incarcerated alongside
him. Suicide attempts, hunger striking, people crying in corridors and endless
doses of anti-depressants became part of a normal
day for Hamid.

Article 5 – Right to
liberty and security of a person

Art in detention. Source: Detention Action

Immigration detention centres are prisons, with barbed wire
and people locked in cells every day. The prison regime includes being held in
a small cell for 23 hours a day when you first arrive in detention. Hamid remembers sleeping with his head next
to the toilet. In the one hour you are allowed outside, he explains that all
you can see around you is concrete, then barbed wire in a small court yard.
It’s like walking into an ash tray, he recalls, with so many anxious smokers
huddled together in the confined space. Rights to liberty and security of person and
freedom of movement are expressed in all major international and regional
human rights conventions. According to UNHCR, the presumption of liberty should
be the default position. But in practice, it is the presumption of detention
that is practiced within UKBA. This is a practice that sees thousands of asylum
seekers and migrants’ rights flouted every day.

Article 8 – the right
to respect to family and private life

The right to family life is of
crucial importance to people in detention but went unmentioned in the
parliamentary meeting. It is both a much maligned but much needed human right
that is under
attack. For migrants who have lived in the UK for years, often since they
were young children, the right to family life is paramount as their families
and children are often British. Source: Detention ActionThe UKBA’s determination to deport such
individuals after committing a criminal offence cannot be squared with their
right to see their partners and children. Jay told me after the Parliamentary
meeting, “My family came from Sri Lanka in 1985 because of the civil war. It
was a given that kids where we lived would grow up to be Tamil Tigers and my
Dad didn’t want that for us. We’ve settled in the UK and the rest of my family
are now British citizens. But because I’ve committed crimes that’s not a
possibility for me. UKBA tried to deport me twice to Sri Lanka – the country I
left when I was five. After a last minute judicial review, which meant that I
was taken off a charter flight only minutes before it took off, after more
detention, and more money, I have eventually been granted Leave to Remain in
the UK based on my right to family life.”

Theresa May is currently attempting
to force judges to ignore the right to family life in deportation cases. In case
that doesn’t work, cuts
to legal aid will mean that it will no longer be available. Put simply, people
will not be able to afford to fight for their right to see their children. So the
future looks particularly bleak for people who find themselves in Jay’s
position.

Momentum for change

At the parliamentary meeting it was clear that everyone in
the room was impatient for change. It is easy to become disappointed or
disillusioned with the lack of progress. But last month, we saw unusually
powerful criticism of long term detention from HM Inspectorate of Prisons in a
report on Lincoln prison, where they found a Somali
man who had been detained for nine years after the end of his prison
sentence. The following day saw a joint report from the Inspectors of Prisons
and of Borders and Immigration which criticised
the UKBA for routinely detaining people coming to the end of their prison
sentences, rather than maintaining the presumption of liberty enshrined in
human rights norms.

The Inspectors found that up to 38% of people who had been
held for 6 months in detention had not applied for bail to be released and a
quarter had no legal representative. There is no automatic system for independent
review of detention for months which turn into years. The Inspectorates propose an interesting solution: an
independent panel to review all cases of long-term detention to consider
whether “exceptional and clearly evidenced circumstances” apply that can
justify continued incarceration.

Could such a panel bring the expertise and evidence-based
analysis that the UKBA so clearly lacks?
Could it circumvent the politicisation that has infected the
decision-making of an agency under constant and fierce pressure from Ministers
and the tabloids?

Rigorous reviews by a genuinely independent panel could
potentially be a significant step away from routine long-term detention. But
ultimately only a time limit provides a
sure safeguard against indefinite detention. In France, the limit on
detention is 45 days. In Malta, there is a policy of automatic detention but a time
limit of 18 months. In fact, the UK is one of only three countries in Europe that
refuses to ratify the European legislation which imposes a time limit of 18
months on detention.

The pace of change may be glacial but there is growing momentum
for change which is giving rise to optimism that our future treatment of asylum
seekers and migrants can restore our pride.

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